Manahan & Falsberg (No 2)

[2021] FCCA 239

FEDERAL CIRCUIT COURT OF AUSTRALIA

Manahan & Falsberg (No 2) [2021] FCCA 239

File number:	MLC 13992 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	25 January 2021
Catchwords:	FAMILY LAW – DE NOVO HEARING – interim parenting – relocation – where parents moved interstate with the children – where parents and children were previously living with paternal grandmother – where paternal grandmother seeks for children to be returned to her care
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC
Cases cited:	Goode & Goode [2006] FLC ¶93-286
Number of paragraphs:	57
Date of hearing:	25 January 2021
Place:	Melbourne
Counsel for the Applicant:	Mr N Eidelson
Solicitor for the Applicant:	Lampe Family Lawyers
Solicitor for the Respondents:	Ms Armstrong of Best Wilson Buckley Family Law
Solicitor for the Independent Children's Lawyer:	Ms Hawdon of Forest Glen Lawyers

ORDERS

MLC 13992 of 2020

BETWEEN:

MS MANAHAN

Applicant

AND:

MR FALSBERG

First Respondent

MS PELGRAM

Second Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	25 JANUARY 2021

THE COURT ORDERS THAT:

1.Until further order the children X born in 2019 and Y born in 2020 ("the children") live with the Respondent Parents.

2.The parties attend interviews on 18 March 2021 for the purpose of the preparation of a family report as arranged by the Independent Children's Lawyer.

3.The parties do all acts and things to facilitate telephone and/or video call time (including FaceTime) between the Paternal Grandmother and the children frequently by agreement, and in default of agreement each Tuesday and Friday between 5.00pm and 5.15pm Queensland time.

4.Until further order:

(a)The Parents and each of them, be and are hereby restrained from consuming any illicit drugs, particularly marijuana;

(b)The parents and each of them, be and are hereby restrained from any form of physical discipline of the children;

(c)The children live with the parents and reside in and sleep at the home of Ms B ("the Maternal Grandmother") at C Street, Suburb D and the Maternal Grandmother be in substantial attendance;

(d)The parents and each of them, be and are hereby restrained from smoking cigarettes in the presence of the children or either of them; and

(e)The parents and each of them comply with any directions from any medical practitioners relating to his or her health, including mental health and the health of the children.

5.The Mother Ms Pelgram attend as soon as possible upon Dr E and provide a hard copy of the Snapchat post of 18 January and seek his assistance as to whether she requires any treatment and/or referral he may make.

6.The Independent Children's Lawyer have leave to issue a subpoena to the Queensland Department of Children, Youth Justice and Multicultural Affairs in regard to the contact between the Paternal Grandmother Ms Manahan born in 1964 also known as Ms Manahan.

7.The Independent Children's Lawyer have leave to issue up to a further five (5) subpoenas in addition to the subpoenas permitted by the rules.

8.In the event that the Paternal Grandmother travels to Queensland for the purposes of the Family Report interviews, the Paternal Grandmother spend time with the children as follows:

(a)With X from 9.00am until 5.00pm for up to two (2) days consecutively; and

(b)With Y from 9.00am until 12.00pm for up to two (2) days consecutively.

With such time to not include 18 March 2021 as this is the day the Family Report interviews will be held. 

9.The parents do all acts and things necessary to facilitate the time outlined in order 8 herein.

10.The Paternal Grandmother provide the Parents seven (7) days' notice of her intended time to travel to Queensland.

11.The Parents attend upon Queensland Medical Laboratories (QML) within 24 hours of any request by the Independent Children's Lawyer for a supervised urine drug screen and the Grandmother attend upon a reputable pathologist within 24 hours of any request by the Independent Children's Lawyer for a supervised urine drug screen which shall include a urine temperature test and urine creatinine level.

12.In the event the parties advise the Independent Children's Lawyer that they are able to meet the costs of a five (5) panel hair follicle test, then they shall undertake a hair follicle test within seven (7) days of any request by the Independent Children's Lawyer which shall be requested at intervals of not less than 11 weeks.

13.In the event the parties advise the Independent Children's Lawyer that they are intending to undertake hair follicle testing then they are to maintain head hair length of at least 4cm and are not permitted to dye or otherwise colour their hair.

14.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 28 May 2021 at 10.00am for Interim Defended Hearing.

AND THE COURT NOTES THAT:

A.The hearing, including these Orders were made within the hearing and presence of the Maternal Grandmother who has this day given a verbal undertaking and agreed to be bound by these Orders and to immediately notify the Paternal Grandmother in the event she observes or becomes aware of any breach of these Orders by the parents.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Manahan & Falsberg (No 2)  is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. My decision in this matter is, I am going to leave the children in Suburb F with the parents until the matter can be reviewed.  That is very much, for the time being, an order until further order.  I will order the family report to be prepared by Ms G, with the interviews on 18 March 2021.  I will vary the time of the existing telephone and FaceTime video call order.  Instead of 6.00pm to 6.15pm Queensland time, to 5.00pm to 5.15pm Queensland time.  I will otherwise make orders to the same effect as paragraphs 4(a), (b), (c), (d), but as varied as I have said, (e) and (f), and (g) I am told has already occurred.  I expect the results of that test to be made available to the other side. 

2. These are the short reasons why I have decided that is what I will order.  The applicant paternal grandmother, Ms Manahan (‘the Paternal Grandmother’), is 56 years old, and her son, Mr Falsberg (‘the Father’) is 22 years old and his partner Ms Pelgram (‘the Mother’) is 19 years old.  The Paternal Grandmother does not work and is in receipt of social security benefits.  The Father is currently, as I understand it, in receipt of unemployment benefits, and the Mother is also not in paid employment outside the home. 

3. The parents have two children, X, born in 2019 who is now basically 18 months old  and Y, born in 2020, who is now five months old (‘the children’).  The proceedings commenced when the Paternal Grandmother issued an application initiating proceedings on 18 December 2020.  Those proceedings were returned as a matter of urgency before a Senior Registrar of this Court, and the parties had the benefit of an urgent and very prompt hearing and that hearing was on 22 December 2020.  For the purpose of that hearing, the Paternal Grandmother was represented by counsel.  The parents were unrepresented, and the hearing was conducted over Microsoft Teams.

4. The Paternal Grandmother relied upon the following:

   (a)Her affidavit filed 17 December 2020;

   (b)Her affidavit filed 22 January 2021;

   (c)Affidavit of Ms H filed 22 January 2021;

   (d)Affidavit of Ms J filed 22 January 2021; and the

   (e)Affidavit of Ms K filed 22 January 2021.

5. The Mother and Father relied upon the following:

   (a)Affidavit of the Father filed 21 December 2020;

   (b)Affidavit of the Mother filed 21 December 2020;

   (c)Affidavit of Ms B filed 21 December 2020;

   (d)Affidavit of the Mother filed 23 December 2020;

   (e)Affidavit of the Father filed 23 December 2020;

   (f)Affidavit of the Father filed 22 January 2021; and

   (g)Affidavit of the Mother filed 25 January 2021.

6. In addition, the Paternal Grandmother sent in a document marked as 'PGM1', which is common ground is a posting on social media by the Mother on 18 March 2021, and I set out the contents hereafter:

   "Bro, I'm not even joking today is just a shit day

   1. I lost my best friend of 7 years

   2. I'm freaking out about my court Tomorrow for the dvo against the mother in law and sister in law

   3. I had to make a call to my lawyer to make another appointment;

   4 I can't look at my kids every time I do I just break

   And number 5. The thoughts of suicide is floating through my head and I just don't want to be alone otherwise I would fear for my life."

7. The initiating application was, according to the applicant, the Paternal Grandmother, necessitated by the circumstances, as she alleged, that the parents had come to live with her after the Mother had been “kicked out of” her mother's home in Queensland, where she had been residing.

8. I have taken into account all of the material that the parties have filed in the proceeding.  There is significant material now available. 

9. The matter came before me on 24 December 2020 by way of an application to stay the order of the Senior Registrar.  The Senior Registrar had, on 22 December 2020, ordered that until further order, the children live with the Paternal Grandmother and that the parents do all acts of things to return the children to the Paternal Grandmother's residence near Melbourne by no later than 28 December 2020.  The Senior Registrar ordered that in the event that the children had not been returned to the Paternal Grandmother's residence by 4.00pm on 28 December 2020, then the Paternal Grandmother have leave to apply for a recovery order.

10. The Senior Registrar otherwise adjourned all extant applications for further hearing before himself on 8 January 2020.  The parents had filed an affidavit by each of them and an affidavit by the Mother's mother, Ms B (‘the Maternal Grandmother’), the day before the hearing before the Senior Registrar.  On 23 December 2020, the parents filed an application whereby they sought as a matter of urgency that the Senior Registrar's order be immediately stayed, and that the decision of the Senior Registrar be reviewed on an expedited basis.

11. It was not practical for me to hear the application to review the Senior Registrar's decision on Christmas Eve, but I dealt with the stay application and I made orders on 24 December 2020 that stayed the application.  So I stayed the orders of the senior registrar, but upon certain conditions.  In substance, there were various restrictions upon the parent’s activity and the stay was on the condition that they lived in, including overnight, the residence of the Maternal Grandmother, and that she be in substantial attendance. 

12. The matter was otherwise adjourned to me this day, 25 January 2021.  On 24 December 2020, the parents were represented by Ms Armstrong, a solicitor of Best Wilson Buckley Family Law in Toowoomba, Queensland.

13. The listing on 25 January 2021 was to enable the Queensland Child Protection Services to provide information to the Court, pursuant to section 69ZW, and also for the Victorian Department of Health and Human Services (DHHS) to provide information.  Otherwise, the matter would have been heard before another judge of this Court in the week commencing 11 January 2021, or thereabouts.  The further delay was in an attempt to garner more information about the welfare for the children.

14. On 29 December 2020, the DHHS provided their response pursuant to section 69ZW, and in substance, determined that there was no role for Victorian Child Protection to play, as the children were residing interstate (no doubt as a result of my stay order).  The report of DHHS concluded to state:

    “In the assessed matter of residency and contact, X and Y be managed by the Federal Circuit Court, with no role for Child Protection identified at this time due to the children residing interstate”.

15. The Queensland Child Protection Authority provided a significant number of pages of documents, some of which were redacted.  But in substance, those documents set out the notifications the Queensland Department had received, which was not of enormous assistance.  However, page 25 of that bundle (which became exhibit C1 as the Court's first exhibit), did provide some information as to the Queensland Department’s attitude and concerns.

16. That document set out that the notified reported concerns around the Mother's mental health.  It is alleged that the Mother has made a statement around wanting to suffocate X, which was investigated by the police and found to be in the context of having postnatal depression.  Significantly, that document went on to say as follows: 

    “There is no information to indicate current mental health concerns for Ms Pelgram, or that she's made any recent threats to harm the children.  There is no information reported to indicate that Mr Falsberg would not be protective should Ms Pelgram's mental health deteriorate, for example seeking mental health support or being able to care for/protect the child from Ms Pelgram.”

    The report went on to say:

    “The parents have moved to Queensland, and reliably have the support of the maternal family members also to care for the children.  It is acknowledged that there is a history of conflict between Ms Pelgram and her mother, which has had a negative impact on Ms Pelgram's mental health.  However, there is no information to indicate that this is likely to occur, given Ms Pelgram is now older, and the relationship between Ms Pelgram and her mother may evolve.”

    That page concluded as follows:

    “A referral will be completed to FaCC to offer support to Ms Pelgram and Mr Falsberg, given that they are both young parents with very young and vulnerable history and the conflicts dynamics of Ms Pelgram’s mental health and alleged drug use.  The family may also need assistance with locating stable housing and sufficient resources for the children.”

17. The manner in which PGM1 came to be before the court must also be noted.  The Paternal Grandmother had filed a further affidavit whereby she replied to the material that the parents had filed in their stay application and in their application before the Senior Registrar.  At paragraph [8] of that affidavit filed on 22 January 2021, the Paternal Grandmother said as follows:

    [8]I am also concerned for the safety of the children due to the Mother's mental health and a recent post on social media stating she has suicidal thoughts.  I am aware, as I have seen a post, that the Mother recently uploaded on social media stating “the thoughts of suicide is floating through my head and I just don't want to be alone, otherwise, I would fear for my life.”  The Mother has been known, in the past, to act in manners of risking her own in other's safety, such as attempting to stab herself.  My son has made numerous comments during the time they lived with me how he “needs to make sure the Mother stays calm so she doesn't do stupid shit like stabbing herself again.”

18. At the close of the parents’ submissions by their solicitor, Ms Armstrong, I raised with her those observations of the Paternal Grandmother and Ms Armstrong took a few moments to take instructions.  The instructions she received (that she relayed to me and the other parties immediately) was that the mother believed these comments to have been made on 22 December 2020 after the completion of the Senior Registrar's hearing, the inference being that she was distraught at the consequence of the Senior Registrar's orders. 

19. The hearing continued for a short time thereafter and some few minutes later, Mr Eidelson, who appears for the Paternal Grandmother, was able to advise that his instructions were that the post was made not on 22 December 2020, but at 5.31pm on 18 January 2021, that is, only a week ago.

20. Further to that, Mr Eidelson was then provided by his client with what appears to be a snapshot of the actual post, and that is the post that I have read.  Of course, what is significant is that when first presented with the text of the post, the Mother's comments put it at a much earlier time and in a different context. 

21. This case ultimately turns on my balancing risk and unacceptable risk.  I am troubled about the Mother's mental health and her own appreciation of her mental health and where her mental health is such that there is a risk to the children.  The issue is whether it is an unacceptable risk.  Further, I have to balance all the advantages and disadvantages to these children of making the orders that the parents seek or making the orders that the Paternal Grandmother seeks. 

22. The Paternal Grandmother's case is centred around circumstances that she alleges that she and her daughter, Ms K, were, since shortly after the birth of each of the children, in substance the primary carers of the children and that the parents were little interested in the day-to-day burden of the care of these two young children.  Further, it is alleged that the Mother has threatened to harm the children, threatened to harm herself and that she abused marijuana to a very significant degree. 

23. The Paternal Grandmother's case was that, recklessly, the parents had removed the children from the care of what had been their primary carers to relocate hastily to Queensland.  Mr Eidelson pointed to some documents and circumstances which were common ground, that is, that the parents had executed documents that permitted the Father's sister, who lives with the Paternal Grandmother, to obtain medical treatment and care for the children and, in the affidavit of 22 January 2021, the Paternal Grandmother annexed two such documents, one dated 26 June 2020 and the other dated 23 November 2020.  Those documents, on their face, permitted or authorised the Father’s sister to obtain medical treatment, including vaccinations and specialist deferral with the two children as required.  Mr Eidelson made the point that that document, those authorities, were significant as they shed light on one of the central factual disputes in the case, that being whether the Paternal Grandmother and her daughter, Ms K, were in fact the primary carers of the children and the parents had effectively abandoned or relinquished that responsibility on a daily basis to them.  Mr Eidelson demonstrated that, whilst that was a fact in dispute, these medical authorities were undisputed proof of part of parental authority having been provided to the daughter, Ms K.

1. The parents' case was that they had come to live with the Paternal Grandmother and her daughter, Ms K, but that they paid their way and that, at times, both of them were in full-time paid employment.  It was their case that they were, in fact, the carers of the children and they acknowledged that the Mother had suffered post-natal depression and had suffered mental health issues in the past.  It was their case that the Paternal Grandmother and daughter, Ms K, had usurped or taken over their role as parents.  Further, they pointed to the medical authorities as a practical means to care for the children when they said they were less able to communicate with medical practitioners than Ms K.  Further, they pointed to the circumstances that now appear to be undisputed, if not common ground, that the Paternal Grandmother, herself, had significant health issues, including mental health issues. 

2. The Father had listed in his affidavit, at paragraph [16], a list of medical complaints that he said his mother suffered, such that it was simply not viable for her to care for the children in the circumstances where they no longer lived in that home notwithstanding the assistance that the paternal grandmother would have from her daughter, Ms K.  The Father pointed to a number of circumstances which were absent in any way from the Paternal Grandmother's first affidavit which she had filed before the proceedings before the Senior Registrar. 

3. The parents point to the circumstance that the Paternal Grandmother's health is not just an allegation, but is very significantly affecting her circumstances.  The Father has set out in his 21 December 2020 affidavit that the Paternal Grandmother, and this is at paragraph [5]:

   “…has never taken either of my children to an appointment, this has always been left to my sister, Ms K.  My mother has numerous medical conditions, one being Chronic Fatigue Syndrome, with this condition she sleeps for over 20 hours each day, and sometimes up to 2 days.  During the time she is sleeping, the care of the children was done by Ms K, who we paid as Ms Pelgram and I were working…”

4. At paragraph [16] of the affidavit filed 23 December 2020 in regards to the stay application, the Father gave more details of the Mother's health issues and set out in subparagraphs (a) through to (i) significant health matters and expanded upon what he previously asserted.  The Paternal Grandmother has responded, paragraph by paragraph to those affidavits. 

5. It is significant, in my view, that notwithstanding there is no mention of her health circumstances when dealing with the Father's affidavit filed 21 December 2020 at paragraph [6], the part that she disputed as to her medical condition was the words “with this condition she sleeps for over 20 hours each day”. 

6. The Paternal Grandmother annexed to her affidavit filed 21 January 2021, a letter from her doctor for the purposes, it was said, of clearing up her health circumstances.  In the exhibit to the affidavit ‘-1’, the doctor stated as follows:

   “Ms Manahan has been my patient since 31/07/2019.  She suffers from medical and mental health issues.  Over last 18 months, I have noticed Ms Manahan's overall health has been improving and getting stable… Ms Manahan has been looking after her grand-children since I have known her.  Currently, her medical or mental health should not cause any problems with her being a carer of grandchildren.”

7. It is in those circumstances that the parents opine, through submissions of Ms Armstrong, that there was scant information as to the Paternal Grandmother's medical and mental health issues.  There is substance in that in the circumstances where it appears, at the time of the initial application by the Paternal Grandmother, she, in fact, had a carer in the sense of someone being paid a social security pension to care for her, that being her daughter, Ms K.  It is significant there is no mention of that in the Paternal Grandmother's initial affidavit.  There is no mention in the Paternal Grandmother's initial affidavit that, when she was younger, one of her children was removed from her care.

8. There is no mention in the Paternal Grandmother's earlier affidavit that part of the context of the daughter, Ms K's care of the children was that the daughter, Ms K, was a paid babysitter to care for the children when the parents were both at work.  I do take into account that the Paternal Grandmother must have prepared that affidavit with some haste in the, what she saw as, emergency circumstances of that application.  Nonetheless, I am troubled as to how I had a full and frank account as to the circumstances of this family.  I do find, as Mr Eidelson says I should, that part of the parental responsibility for these children had been provided to the daughter Ms K by way of authority which I concede.  Of course, those authorities are also consistent with the daughter being a paid babysitter, it being necessary to take the children to the doctor. 

9. In this matter, I take into account all of the Family Law Act 1975 (Cth) (‘the Act’) and, in particular, from section 60CA up to and including the end of division 6 of part VII. I am required to take into account the best interests of the children and it is not in dispute that the primary considerations in determining what is in the child's best interests is provided for in section 60CC(2) of the Act:

   (2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)The need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

10. Section 60CC(2A) is significant in that:

    …the Court is to give greater weight to the considerations set out at paragraph (2)(b).

    That is, the need to protect the children. 

11. I read section 60CC(2) of the Act in the circumstances of these children, relating not only to the parents, but to other significant people in their lives. In terms of attempting to follow paragraph [82] of Goode & Goode [2006] FLC ¶93-286, the pathway, it is common ground that the Paternal Grandmother and the daughter, Ms K, had had a significant role in the care of these two children's lives for the whole of their lives. What is in dispute is the circumstances of how that came about.

12. One matter is that it is common ground that these four adults and two children lived together in the one household during the entire COVID-19 regime up until this time.  It must have been a trying time for all concerned.  It is clear that the relationship between the parents and the Paternal Grandmother deteriorated significantly during that time.  The application was brought on in the circumstances where it is common ground that the Mother had travelled to Queensland on 1 December 2020 to visit her family of origin.  What is in dispute is whether that was for the purpose of preparing to move to Queensland, or merely to visit her mother.

13. The Mother returned on 8 December 2020.  In the intervening period, the children had lived in the household of the Paternal Grandmother, her daughter and the Father.  On 11 December 2020, in circumstances of haste and, indeed, without informing the Paternal Grandmother and Ms K in advance or any significant notice, the parents left, drove through New South Wales to Queensland to commence residing with the Maternal Grandmother.  I note that the Maternal Grandmother has sworn an affidavit recently, which was filed on 25 January 2021 at 10.16am and in that affidavit, the Maternal Grandmother sets out the significant degree of her observation and being involved with the parents in her household and how they have continued to comply with all of the directions set out in the stay order.

14. I take some comfort from that affidavit.  In response to the posting or exhibit concerning the “thoughts of suicide floating through my head” document, the parents tender the document which is a letter from the doctor at 21 January 2021 which said as follows:

    “Ms Pelgram (2001) has been treated for depression in the past.  Currently she well and does not require any treatment for mental health services.  This certificate is given in good faith and these dates are in keeping with the information supplied by Ms Pelgram and my clinical assessment.”

    That is signed by the doctor. 

15. Mr Eidelson has pressed upon me that, to adopt the inference that it is, he says, obvious that the doctor who saw the Mother on 21 January 2021 was not provided with the information that the Mother had, a mere three days earlier, made the statements in regard to not being able to look at her kids and thoughts of suicide floating through her head.  That may be so.  I am unable to conclude that.  Mr Eidelson's submissions on that point are not without substance. 

16. I have to balance the various risks to the children.  It is not disputed or, at least, not seriously disputed that the parents have little money or financial resources.

17. If the children are to have their residence relocated back to their Paternal Grandmother's home in an outer suburb of Melbourne, it is simply impossible for the parents to resume residing with the Paternal Grandparents in the circumstances of the allegations and counter-allegations in these proceedings.  Those relationships have, sadly, broken down.

18. It is simply not possible for the children to be returned to the same environment that they were in before the hasty relocation to Queensland.  I am unable to determine the extent of the Paternal Grandmother's care and the care of the daughter, but I am confident in finding that they were significantly involved in the children's care.

19. However, I am also confident in finding that the parents were also significantly involved in their care.  It is also clear that the daughter was involved in their care, including as a paid babysitter.  The parents are young and they are to be commended for having a crack at obtaining fulltime paid employment.  When parents have little children and they are in employment they, naturally, need the assistance of family and/or paid caregivers.  One matter that is common ground or not seriously disputed is that the mother has had a history of mental health issues since the birth of her children. 

20. That is a matter that concerns me greatly, and the point of Mr Eidelson's submissions were that the history combined with the recent posting demonstrates a real risk to the children or to the children's welfare and the Mother's mental health.  That is so.  The matters that are in place that in some way ameliorate that are the circumstance that the Mother resides in the same house as the Father.  There is no suggestion that the Father has mental health or drug abuse issues.  The Paternal Grandmother alleges that he is manipulated by his partner.  However, as the Queensland Department has observed, there is no information that demonstrates the Father would not act sensibly were the Mother to have a serious relapse in her mental health.

21. Further, the Mother is residing with the Father and the children in the home of her mother, and I find that the Maternal Grandmother is, effectively, keeping a close eye on the Mother's mental health.  That does not mean there is nil risk to these children, but the risk is, in part, ameliorated.

22. The alternative risks to the children were they to come to reside, by my order, with the Paternal Grandmother, is a significant interruption to their relationship with the parents, as there is simply no proposal or even idea as to how the parents would be able to travel to the outer suburb of Melbourne and re-establish accommodation.  There is a real risk that there would be a serious interruption to that relationship with their parents. 

23. It is also, I am concerned, a real risk to the promotion of the children's relationship with their parents.  The Paternal Grandmother relies on the affidavit of Ms J, which, on the one hand, asserts that her brother (the Father) wants to be a good father and to be present for both X and Y.  The deponent goes on to set out how the Father asked if he and the Mother and the children could visit his sister, that is, the children's aunty.  It is clear from the evidence of the deponent, being the Father's sister, that there is significant antipathy to the Mother.  The Father was simply not permitted to visit if he was to visit in the company of the Mother.  As close as it got to permitting the mother to be nearby was that if the Father came to visit his sister with the children, the Mother was to remain inside of the motorcar.  Those facts demonstrate enormous antipathy that is not in the children's best interests.  It may be when this matter is examined at final hearing that the behaviour of the Mother may, at least in part, have justified or warranted some unusual restriction upon her interaction with her partner's sister or it may not.  But nonetheless, as at this point in time, there is real antipathy, it appears to me, from the Father's family, to his partner, the Mother.

24. There is then real concern about the actual physical ability of the Paternal Grandmother to care for the children.  That is not completely alleviated by the rather sketchy position of her mental and medical health issues, as set out by her doctor. 

25. The extent of the Paternal Grandmother's mental health problems can only be gleaned by comparing the Father's allegations, at paragraph [16], to which I have referred before, and the extent to which the Paternal Grandmother has challenged those assertions.  I do take some comfort from the statement of the Paternal Grandmother that currently “her medical or mental health should not cause any in her being a carer of grandchildren.”  To my mind, that is a very qualified and uncertain position. 

26. In the circumstances of the Paternal Grandmother's health and her application to be placed back in to, as she would have it, the position of primary care, it behoves her to set out a full and frank account of her health, notwithstanding that she now has a doctor's certificate.  She has not done so.  Hopefully, my circumspection about her health and ability to care for the children is misplaced, and in fact she is in much better health and much more able than what I am concerned she is.

27. However, at this point in time, it appears, from the Department of Social Service's point of view, her health is still such as to require a carer.  Mr Eidelson told me that she is in the process of “transitioning” away from having a carer because of the improvement in her health, as I infer, over the last 18 months.  Nonetheless, it is a very significant matter that the Paternal Grandmother has, or until very recent times, has required the assistance of a carer to be paid at public expense to care for her. 

28. A further matter that the Paternal Grandmother did not make mention of in her initial affidavit was the circumstances that one of her own children had been removed from her care.  In her reply affidavit filed recently, she asserted that this was due to postnatal depression. 

29. Balancing all of those advantages and disadvantages, the advantages of the children living with the Paternal Grandmother would be that they would be cared for and have a significant relationship with their grandmother, with whom they had a significant relationship up until the hasty removal on 11 December 2020.  The other advantage is that they would be cared for by in part, by the sister Ms K. 

30. In this case, abuse of marijuana figures significantly.  The Paternal Grandmother asserts that the Mother has a real problem, and not only has used marijuana, but significantly abuses marijuana to the point of using it on a daily basis if she can.  The Mother frankly concedes that she used a lot of cannabis in the household of the Paternal Grandmother, but points to, what she says, is the daily use by the sister Ms K.  In addition, it is asserted that the Paternal Grandmother smokes 400 to 600 cigarettes per month, I believe, a heavy smoker and smokes inside the house.  The allegation of the heavy smoking is not denied. 

31. However, the matters that weigh most heavily on me is the degree of uncertainty about the Mother's mental health, the interruption of the relationship between the children and the Paternal Grandmother and her daughter, and the potential, and most probably actual interruption, at least for some time, of a relationship between the children and their parents if I relocate them back to the Paternal Grandmother's care. 

32. Added to that, there is the uncertainty of the state of the Paternal Grandmother's house, the state of the cigarette smoking and the marijuana smoking in that house, combined with the uncertainty about the necessity for her to have a carer.

33. On the other hand, the advantages of the children remaining where they are means that they are under the close eye of the Maternal Grandmother, against whom there are no allegations of want of care, drug use or neglect that I have been referred to. 

34. There is the advantage that the parents would be living in the place where they want to live and, as they say, attempting to raise the children on their own.   Balancing all those matters is why I have determined that it is in the children's best interests, for the time being until further order and until this matter can be investigated more fully, including with the assistance of subpoenas by the parties and/or the Independent Children's Lawyer, that the children should remain in Queensland. 

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       12 February 2021